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Douglas Andrews / Sep. 28, 2020

The Confirmation Clock Is Ticking

Trump has his third SCOTUS nominee, and the Democrats have a losing hand.

Donald Trump signaled it would be Amy Coney Barrett, and so it was.

“I’m saving her for Ruth’s seat,” he reportedly said when he decided on Justice Brett Kavanaugh to fill Anthony Kennedy’s seat in 2018. As if that weren’t a strong enough hint, he mentioned at a Wednesday press briefing that he’d already made up his mind about this pick. At that point, he’d interviewed just one candidate.

That candidate, Judge Barrett, quickly put to rest any suspicions about what kind of justice she’d be. “I clerked for Justice Scalia more than 20 years ago,” she said Saturday in a Rose Garden ceremony at the White House, “but the lessons I learned still resonate. His judicial philosophy is mine, too. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”

Now, though, comes the hard part: a confirmation process wherein one party will do everything in its power to gum up the procedural works while making this eminently qualified candidate appear unworthy of replacing leftist icon Ruth Bader Ginsburg.

Good luck with that second part. Judge Barrett graduated first in her class at Notre Dame Law School. Upon graduation, as she sought a Supreme Court clerkship, a distinguished former professor, John Garvey, who is now president of Catholic University of America, wrote a one-sentence letter of recommendation for her to Justice Antonin Scalia: “Amy Coney is the best student I ever had.”

Going one better, Notre Dame Law School Professor O. Carter Snead said, “There’s just consensus: Amy Barrett is the best student, the smartest and most talented person to ever come through the University of Notre Dame Law School.”

So there’s that.

And there’s this: Noah Feldman, the Felix Frankfurter professor of Law at Harvard University and a star witness for the Democrats in the Trump impeachment trial earlier this year, recognized Barrett’s brilliance when they were both Supreme Court law clerks in 1998. “When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme,” he wrote. “I would first go to Barrett to explain it to me.”

Admiration from across the ideological spectrum is commonplace for Judge Barrett. “When she was nominated to be a judge on the 7th Circuit, every law clerk who had served with her at the Supreme Court, including Justice Ruth Bader Ginsburg’s clerks, supported her nomination,” Garvey said. “‘This view is unanimous,’ they said: She ‘is a woman of remarkable intellect and character.’”

The above endorsement, however, obviously didn’t impress Senate Judiciary Committee member Dianne Feinstein, who infamously observed about Barrett and her Catholic faith at the time, “The dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.” (Feinstein must’ve forgotten about the Constitution’s Article VI “no religious test” clause.)

So the anti-Catholic bigotry is out there, but it’s fraught with risk for the Democrats. Joe Biden is polling well among Catholics, despite being a fake adherent to the faith, and he’s also polling well among suburban women, ostensibly because he comes across as more compassionate than Trump. Neither of these voter blocs, it seems, would be pleased by such an attack on Barrett, a 48-year-old mother of seven.

More likely, the line of attack will involve healthcare — specifically, the threat that a Justice Barrett might pose to ObamaCare and the leftist sacrament of abortion. “[Ruth Bader Ginsberg’s] passing is devastating,” said Biden’s VP pick, Kamala Harris, in a statement released Saturday, “and it would be a travesty to replace her with a justice who is being selected to undo her legacy and erase everything she did for our country.”

Harris added, “With the next Supreme Court Justice set to determine the fate of protections for those with preexisting health conditions, and reproductive health options, I will continue to fight on behalf of the people and strongly oppose the president’s nomination.”

Well outside the lines of decorum, even for Trump-hating hyper-partisans, would be the type of attack launched by “critical race” theorist Ibram Kendi, who took a grotesque swipe at the Barrett family for adopting two Haitian children: “Some White colonizers ‘adopted’ Black children. They ‘civilized’ these ‘savage’ children in the ‘superior’ ways of White people, while using them as props in their lifelong pictures of denial, while cutting the biological parents of these children out of the picture of humanity.”

In the end, it’s hard to see how the Democrats prevent Judge Barrett from becoming Justice Barrett. They’ll no doubt throw up every procedural hurdle they can, but the Republicans have the votes. And they have the Constitution. Article II, Section 2, clearly states that the president “shall nominate … Judges of the supreme Court,” and Article II, Section 1, clearly states that an American president “shall hold his Office during the Term of four Years,” not three years and nine months.

If ever there was a losing hand, the Democrats are now holding it.

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